SIMON v. AFFORDABLE DENTURES AND IMPLANTS LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
ANTOINETTE SIMON,
Plaintiff,
v.
AFFORDABLE DENTURES AND
IMPLANTS LLC, and KRISTY
HATTAWAY,
Defendants.
CIVIL ACTION NO.
3:25-cv-00195-TES
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING COMPLAINT
Pro se Plaintiff Antoinette Simon commenced this civil action on December 5,
2025, by filing a complaint [Doc. 1] and moving for leave to proceed in forma pauperis
(“IFP”)—that is, without prepaying fees and costs. [Doc. 2]. Because the Court
GRANTS Plaintiff’s Motion for Leave to Proceed IFP [Doc. 2] and waives the filing fee,
the Court must screen her Complaint. See 28 U.S.C. § 1915(e).
1. 	Motion for Leave to Proceed In Forma Pauperis
Authority for granting a plaintiff permission to file a lawsuit without prepayment
of fees and costs is found in 28 U.S.C. § 1915, which provides as follows:
[Generally], 	any 	court 	of 	the 	United 	States 	may 	authorize 	the
commencement, prosecution or defense of any suit, action or proceeding,
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civil or criminal, or appeal therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that includes a statement of
all assets such prisoner possesses1 that the person is unable to pay such fees
or give security therefor. Such affidavit shall state the nature of the action,
defense or appeal and affiant’s belief that the person is entitled to redress.
28 U.S.C. § 1915(a)(1). A plaintiff’s application is sufficient to warrant a waiver of filing
fees if it “represents that the litigant, because of his poverty, is unable to pay for the
court fees and costs, and to support and provide necessities for h[er]self and [her]
dependents.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). After
reviewing Plaintiff’s application, the Court GRANTS Plaintiff’s Motion for Leave to
Proceed In Forma Pauperis. [Doc. 2].
2. 	Frivolity Review
Since Plaintiff is proceeding in forma pauperis, § 1915(e) requires the Court to
review her pleadings to determine whether they are frivolous or malicious or fail to
state a claim for which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). The
proper contours of the term “frivolous,” have been defined by the Supreme Court to
encompass complaints that, despite their factual allegations and legal conclusions, lack
an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
These types of complaints are subject to sua sponte dismissal by a district court. Id. at
324 (noting that dismissals under § 1915(e) “are often made sua sponte prior to the
1 “Despite the statute’s use of the phrase ‘prisoner possesses,’ the affidavit requirement applies to all
persons requesting leave to proceed [in forma pauperis].” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305,
1306 n.1 (11th Cir. 2004).
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issuance of process, so as to spare prospective defendants the inconvenience and
expense of answering such complaints”). Cases that are not timely filed are frivolous
and fail to state a claim upon which relief could be granted under § 1915(e)(2)(B). See
Abram-Adams v. Citigroup, Inc., 491 F. App’x 972, 973 (11th Cir. 2012); Hammonds v. Mark
Shellnut, LLC, 399 F. App’x 540 (11th Cir. 2010).
Here, Plaintiff’s claims are time-barred, and therefore frivolous. Plaintiff’s suit
arises under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans
with Disabilities Act of 1990 (“ADEA”). [Doc. 1, p. 3]. To bring a lawsuit under Title VII
or the ADEA, an employee must first exhaust all administrative remedies. Wilkerson v.
Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001); Poulsen v. Publix Super Markets, Inc.,
302 F. App’x 906, 907 (11th Cir. 2008). This includes filing “an Equal Employment
Opportunity Commission (‘EEOC’) complaint against the discriminating party and
receiv[ing] statutory notice from the EEOC of her right to sue the respondent named in
the charge.” Burnett v. City of Jacksonville, Fl., 376 F. App’x 905, 906 (11th Cir. 2010)
(alterations accepted). A plaintiff must file his complaint “within ninety days after the
giving of such notice.” 42 U.S.C. § 2000e-5(f)(1); see also Miller v. Harris Ventures, Inc., No.
1:19-cv-170, 2019 WL 13493418, at *1 (N.D. Ga. Sept. 17, 2019).
In her Complaint, Plaintiff states she received the Notice of Right to Sue on
September 5, 2025. [Doc. 1, p. 5]. Therefore, day one of Plaintiff’s ninety-day window
was September 6, 2025. See Fed. R. Civ. P. 6(a)(1)(A). Plaintiff’s ninety-day window
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ended on December 4, 2025. Plaintiff filed suit on December 5, 2025—91 days after
receiving the Notice of Right to Sue. [Doc. 1, p. 6]. “The ninety-day window is strict and
equitable relief is granted sparingly. Courts have determined that filing suit 91 days
after receipt of the notice of right to sue is time-barred.” Nascimben v. Feld Entert., Inc.,
No. 8:24-cv-98-WFJ-SPF, 2024 WL 3673706, at *3 (M.D. Fla. Aug. 6, 2024) (citing Norris v.
Fla. Dep’t of Health & Rehab. Servs., 730 F.2d 682 (11th Cir. 1984)). The Court recognizes
that Plaintiff filed pro se, and barely missed the filing deadline. “Even so, ‘this ninety-
day-filing requirement applies to pro se plaintiffs.’” Miller v. Harris Ventures, Inc., No.
1:19-cv-170, 2019 WL 13493418, at *1 (N.D. Ga. Sept. 17, 2019) (alterations accepted)
(quoting Canady v. Automatic Data Processing Inc., No. 1:05-cv-2855, 2006 WL 3422424, at
*9 (N.D. Ga. 28, 2006)). Plaintiff’s claims are time-barred and therefore fail to state a
claim upon which relief may be granted.
3. 	Conclusion
Accordingly, the Court GRANTS Plaintiff’s Motion for Leave to Proceed IFP
[Doc. 2]. Then, upon review of Plaintiff’s complaint [Doc. 1] under 28 U.S.C. § 1915(e),
the Court DISMISSES it. 28 U.S.C. § 1915(e)(2)(B).
SO ORDERED, this 8th day of December, 2025.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
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